NOTE THE WORDS "Consumer Electronics Products" are the first words under section 21. Then Apple immediately describes what products fall under that category!
21
CONFIDENTIAL
"Consumer Electronic Products" means personal computers (portable and desktop); tablet or slate style computing devices; handheld electronic and/or communication devices (e.g., smartphones, digital music players, multi-function devices, etc.); any device whose function includes the creation, storage or consumption of digital media; any component or sub-component in any Consumer Electronic Product; and any accessory that is the same or similar (in Apple's sole discretion) to an accessory made or sold by or on behalf of Apple (regardless of when Apple sold or started to sell such accessory, including after the Closing Date) that is suitable for use with any Consumer Electronic Product. Notwithstanding the foregoing, "Consumer Electronic Products" shall not include:
(i)
products (except for any product that is capable of interacting or interfacing with a Consumer Electronic Product) that are powered by electricity or batteries but that do not in any way involve the creation, storage, consumption, use, viewing, transmission, or processing of digital media or digital information and do not involve the use of wireless communication networks. Products that fall into this category include, without limitation, electric-powered and/or battery-powered drills, hand tools and watches (i.e. a wrist-worn device whose sole function is to display the time of day);
(ii)
medical devices and other products that are not the same or similar to any Apple product (regardless of when Apple sold or started to sell such product, including after the Closing Date) and that are used exclusively for the diagnosis and/or treatment of human or animal health conditions; or
(iii)
products or components thereof that are not the same as or similar to any Apple product (regardless of when Apple sold or started to sell such product, including after the Closing Date) or component of any Apple product and that are made solely for, and sold solely into, the defense/military, automotive, medical, or industrial markets.
(b)
The parties hereto acknowledge and agree that the value to the parties of the transactions provided for in this Agreement would be substantially and materially diminished if either LMT directly or indirectly through or in association with any person or business enterprise or otherwise, were hereafter to breach any of the provisions of Section 10(a), and LMT has therefore offered and agreed to the provisions of Section 10(a) as a material inducement to Apple to enter into this Agreement, and in consideration of the promises, representations and covenants made by Apple under this Agreement. LMT specifically acknowledges and agrees that the provisions of Section 10(a) are commercially reasonable restraints on it and are reasonably necessary to protect the interests Apple is acquiring hereunder and under the Transaction Documents. The parties hereto further acknowledge and agree that Apple would be irreparably damaged by a breach of Section 10(a) and would not be adequately compensated by monetary damages for any such breach. Therefore, in addition to all other remedies, Apple shall be entitled to injunctive relief from any court having jurisdiction to restrain any violation (actual or threatened) of Section 10(a) without the necessity of (i) proving monetary damages or the insufficiency thereof, or (ii) posting any bond in regard to any injunctive proceeding. Notwithstanding anything in this Agreement to the contrary, the rights and licenses granted under the License Agreement, dated March 10, 2009, between LMT and The Swatch Group Ltd., shall not constitute a violation of Section 10(a) hereof or of any other provision of the MTA or any Transaction Document, but only to the extent that such License Agreement is not amended after the date hereof to include any new provision that would violate Section 10(a).
22
CONFIDENTIAL
(c)
If any court shall in any proceeding refuse to enforce Section 10(a) in whole or in part because the time limit, geographical scope or any other element thereof is deemed unreasonable in the jurisdiction of that court, it is expressly understood and agreed that Section 10(a) shall not be void but, for the purpose of such proceeding, such time limit, geographical scope or other element shall be deemed to be reduced to the extent necessary to permit the enforcement of Section 10(a) to the maximum extent allowable in that particular jurisdiction. The foregoing, however, is not intended to and shall not in any way affect, invalidate or limit the remaining provisions of Section 10(a) or affect, invalidate or limit the validity or enforceability of Section 10(a) as written in any other jurisdiction at any time.
(d)
From time to time, LMT or LMC may request that Apple grant express written permission to develop, design, manufacture, sell, offer for sale or otherwise distribute or provide any accessory for a Consumer Electronic Product or materials, components, manufacturing services or technology for use or integration therewith. Such requests shall be submitted in writing to Apple's Senior Director of Legal Affairs for Hardware Products, and shall specify in reasonable detail the contemplated activity for which Apple's consent is being sought. Apple shall respond within a reasonable period of time, and Apple shall consider each such request in good faith taking into account both the business opportunity to LMT or LMC, as well as any actual or potential impact to Apple's current or future business opportunities.
11.
Confidentiality. The disclosure and use of all confidential information pursuant to this Agreement and the other Transaction Documents shall be subject to the terms of the parties' existing Confidentiality Agreement and Exclusivity Agreement, both dated April 30, 2010, the terms of which are incorporated by reference herein. Without limiting the generality of the foregoing, LMT shall ensure that neither LMT nor any Affiliate of LMT shall orally or in writing refer to Apple or any Affiliate of Apple in any press conference, publication, press release, filing, registration, notice or other communication without providing Apple at least three (3) business days' prior notice and a copy of each such proposed reference, allowing Apple an opportunity to review and comment on the same, and making any changes in each such proposed reference as requested by Apple, unless the failure by LMT to make such changes would result in LMT's failing to comply with applicable law.
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